Article 3, Federalism and the Silence in our Constitution: Perspectives in the Context of the Andhra Pradesh Reorganization

by Vasujith Ram

Recently when the Andhra Pradesh Reorganization Bill was proposed in order to divide the State of Andhra Pradesh to create a newImage State called the State of Telangana, the usage and interpretation of Article 3 and its proviso came into light. According to Article 3 of our Constitution, the Parliament may by law form a new state, increase or diminish the area, alter the boundaries as well as the name of any State.[1] The proviso to Article 3 provides that the Bill for the abovementioned purposes only if it satisfies twofold requirements. The first requirement is that the Bill may be introduced only upon the recommendation of the President.[2] The second requirement is that the Bill, if it affects the area, boundaries, or name of the State(s), must be ‘referred’ by the President to the corresponding State Assembly for ‘expressing its views’.[3] The President may prescribe a time limit within which the State Assembly can express its views.[4] Originally, the proviso to Article 3 stated that the views of the legislatures of the State had to be ascertained not with respect to the introduction of the Bill, but also with respect to the provisions of the Bill. That erstwhile proviso was substituted by the Constitution (Fifth Amendment) Act, 1955 with the present proviso.

The proposed Bill was referred to the Andhra Pradesh State Assembly as per Constitutional requirements. This Bill was rejected by the State Assembly. Nevertheless, the Bill was introduced and passed in both Houses of the Parliament, and was assented by the President as well as notified in The Gazette of India on 1 March, 2014. This case raises several interesting questions of Constitutional interpretation. Broadly, the issue encompasses principles of Federalism as well as internal States’ reorganization.

The debated issue is whether the rejection of the Bill by the State Assembly has any effect or ramifications on the power of the President to introduce the Bill, as well as the power of the Parliament to pass the Bill for the creation of a new State. The answer, from a textual perspective, is in the negative. To confirm this, there are two precedents in the form of judgments delivered by the Supreme Court. In Babulal Parate v State of Bombay[5], the issue was the Constitutionality of S. 8A of the States Reorganization Act, 1956. In the Bill the Parliament referred to the Legislative Assembly of the State of Bombay, the proposal to split the State of Bombay into a Union Territory of Bombay, State of Maharashtra and State of Gujarat. However, the Parliament thereafter amended the Bill to include the Union Territory of Bombay within the State of Maharashtra and then passed it. When this was challenged, the Supreme Court held that the Parliament could amend the Bill after the views of the State Assembly was obtained and it need not be referred back to the State Assembly for expression of its views. In Pradeep Chaudhary v Union of India[6], the Parliament included the district of Haridwar in Section 3 of the Uttar Pradesh Reorganization Bill, despite disapproval of the Uttar Pradesh State Assembly when the Bill was referred to it. Once again the Apex Court opined that the Parliament is not bound by the views of the State Assembly.

To understand this unique situation, one must understand the Indian model of Federalism. According to the Stanford Encyclopaedia of Philosophy, there are two models of Federalism – ‘coming together’ and ‘holding together’[7]. The United States of America follows a ‘coming together’ model of Federalism. As explained in the Babulal Parate case and State of West Bengal v Union of India[8] case, the erstwhile American Colonies or States were sovereign or Independent. The American Constitution was a Constitution where the people of states came together to form a ‘more perfect Union’[9]. Thus in a sense, the project of American Constitutionalism was a coming together of various states for geostrategic and national security interests.[10] Thus the classic American model did not have a strong bias towards the centre.

India is an embodiment of the ‘holding together’ model of Federalism. Our Constitution was not the result of states coming together. It was only a result of Independence from the British and the formation of a Constituent Assembly by the Indian Independence Act, 1947. The Indian model of Federalism has been described by Prof. Wheare as ‘quasi-federal’[11], with a strong bias towards the Centre. Provisions like Article 246-254 (legislative power heavily in favour of the Union), Entry 97 of Schedule 7 of List 1 (residuary power is with the Parliament), Articles 352-260 (Emergency powers), Article 163 (governor can act in his discretion), Article 124 and 217 (appointment of Judges) etc. confirm the argument that the Indian Union favours the Centre strongly.

ImageThus the Constitutional scheme in India provides for a strong Centre, and this explains why the Supreme Court in Babulal Parate and Pradeep Chaudhary interpreted Article 3 literally, to essentially deprive the States of any say in the territorial reorganization, except for expression of its views before the tabling of the Bill. However, it is now time to question whether it is the right approach. After gaining Independence, one of the foremost challenges of the framers of the Constitution and the leaders of the country was the integration of princely states.[12] In addition, the reorganization of States on linguistic bases was on the cards.[13] Therefore, although our framers were aware that Constitutions such as the United States Constitution (Article IV, Section 3) or the Australian Constitution Act, 1900 (Section 123 and 124) required the consent of the States, a flexible and easy method of reorganization of States was evolved by the framers. The manifestation of this the relatively simple provisions of Article 3. In other words, at the time of Constitution making, a smooth mechanism for territorial reorganization was necessary due to concerns that certain States may block or not consent to proposals.

Today, the situation is different. In SR Bommai v Union of India[14], the Supreme Court in a landmark decision held that federalism is a part of the ‘basic structure’ of the Constitution. Further, the Court also held that the power of judicial review extends to even the President’s power to impose Presidential Rule. Previously, the provision of President’s Rule under Article 356 was misused by the ruling party at the Centre with ulterior motive in violation of Constitutional spirit. The Court in the SR Bommai thus implemented the Sarkaria Commission report and laid down guidelines regarding the use of Article 356. This has significantly bolstered the principle of federalism in our country and President’s Rule can longer by imposed arbitrarily. Today is also the era of multi-party democracy, and parallely the rise of regional parties. In the Lok Sabha elections of 2009, the regional parties had a vote share of 50%.[15] These are just illustrations to show that a strong culture of federalism has developed in our constitutional democracy.

In such a situation, what should be the viable model of Constitutional interpretation of Article 3? The choice may appear to be Imagebetween a model favouring the centre, and a model favouring the States. The Constitutional Assembly debates highlight the consequences of implementing any of the two opposite ends of the pendulum. Prof. KT Shah introduced an amendment to Article 3 where the State Legislatures would initiate the territorial reorganization, i.e., binding consultation of the State Legislatures was proposed to be made mandatory first before any reorganization.[16] Prof Shah’s contention was that the territorial reorganization would affect the people themselves, and thus a mechanism to consult the wishes of the people was imperative instead of laying it down on them from above.[17] K Santhanam countered Prof. Shah’s proposal, arguing that Prof. Shah’s amendment would effectively deny minorities any right to suggest reorganization of territory.[18] In addition, BR Ambedkar and RK Sidhwa opined that the model would be too rigid, and redrawing boundaries, which was a crucial task at the time of Constitution making, would become too difficult.[19]

In the author’s opinion, a model where there is constant dialogue and tension between the Centre and States may be evolved. Under the scheme of Article 3, interpreting the requirement of ‘expression of views’ of the States as any form of consent or concurrence may too much of a stretch of Constitutional interpretation. On the other hand, giving the Centre unilateral powers has its fair share of problems, and it is only fair that the people who are affected have a say. Hence, a model whereby the views of the State are given due importance is necessitated. As previously stated, federalism is a part of the basic structure of the Constitution.[20] The basic structure doctrine is not only a shield against constitutional amendments, but also an active guide for constitutional interpretation. Using the basic structure doctrine as a guiding principle, Article 3 must be construed in such a manner that due respect is given to the ideal of federalism. For example, instead of giving outright powers to the Parliament to amend the Bill after receiving the views of the State Assembly, it may be made mandatory to elicit the views of the State Assembly once again. Due consideration may also be given to any amendments suggested by the State Assembly. If the Bill is rejected outrightly, a reworked and modified Bill based on the recommendations of a Commission may be sent again to elicit their views. At least a dual chance in extreme cases may help serve the upkeep of ideals of federalism. In S. P. Gupta v Union of India[21]it was held that consultation has to be “meaningful, purposeful and result oriented”[22]. Although the interpretation of the word consultation to mean “concurrence”, as the Supreme Court did in Supreme Court Advocates-on-Record Association vs. Union of India[23]may be too extreme a measure, the views of the Court in SP Gupta may be given due importance.

The weight of the opinion of the State Legislatures is one of the “silences in our constitutional law”. As the distinguished jurist Fali Nariman observed, “The first lesson about written Constitutions, then, is that they do not function on their own. A special effort has to be made by its custodians, those entrusted with its functioning to work them.”[24] A strong culture of respect for the basic structure and the various unwritten principles of the Constitution must be developed. When “We the People” gave unto ourselves this Constitution, we also accepted the basic structure of the Constitution. The Presidential Oath, where the President takes an Oath to preserve, protect and defend the Constitution, he/she also takes an oath to preserve, protect and defend the basic structure of the Constitution. Federalism and respect to the State Legislatures is a part of the basic structure. It is in conformity with this, our ImageConstitutional democracy must function. Only a strong culture of Constitutional morality and the observance of constitutional spirit can ensure our nation-state and bring about a healthy balance and tension among the states and centre.

In a recent Writ Petition, Kiran Kumar Reddy v UOI (WP(C) 228 of 2014), the petitioner has challenged the constitutionality of the Andhra Pradesh Reorganization Act on grounds of violation of principles of federalism. The Supreme Court has issued notice in this case. Hopefully the Supreme Court will now use the opportunity to reinterpret the silence of Article 3 in the context of the guiding basic structure principle of federalism.

(Vasujith Ram is the Executive Editor of JILS) 
Image Courtesy: here, herehere and here.

[1] Article 3 of the Constitution of India.

[2] Proviso, Article 3 of the Constitution of India.

[3] Ibid.

[4] Ibid.

[5] AIR 1960 SC 51.

[6] (2009) 12 SCC 248.

[7] Federalism, Stanford Encyclopaedia of Philosophy.

[8] 1963 AIR 1241.

[9] Preamble, United States Constitution, 1787.

[10] See Akhil Amar, America’s Constitution: A Biography (Random House, 2006).

[11] KC Wheare, Modern Constitutions, 1966, 21.

[12] M.P. Jain, Constitutional Law of India (5th, Butterworths Wadhwa, New Delhi 2003) 336.

[13] Ibid.

[14]  (1994) 3 SCC 1.

[15] Milan Vaishnav, The Complicated Rise of India’s Regional Parties, Carnegie Endowment for International Peace, November 13, 2013.

[16] Constituent Assembly Debates, Volume VII, 17th November, 1948.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] SR Bommai v Union of India (1994) 3 SCC 1.

[21] AIR 1982 SC 149

[22] Ibid.

[23] 1993 (4) SCC. 441

[24] Fali Nariman, The Silences In Our Constitutional Law, (2006) 2 SCC (Jour) 15.

This entry was posted in Constitution, Democracy, Uncategorized and tagged , , , , , , , . Bookmark the permalink.

3 Responses to Article 3, Federalism and the Silence in our Constitution: Perspectives in the Context of the Andhra Pradesh Reorganization

  1. she says:

    Good work Vasu. I hope they cite your article in their arguments. 😀

  2. Asad says:

    Another point by which, I think, one could challenge Art. 3 is through Schedule VII. Is there a reasonable presumption that the people elect a member to the Parliament only to deliberate over the entries listed in List I and List III of Schedule VII? If yes, then can they go ahead to discuss, and even vote on, a Reorganisation Bill whose legitimacy might lie in the entries listed in List II (say, a new administrative unit being created for better facilitation of ‘law and order’). In this case, isn’t a member of the parliament overstepping her mandate? While one may refute this saying that this is purely theoretical and in practice, there is no one reason that’s given for the creation of a new State, I believe that this needs to be answered. Or else, Article 3 is either an exception to (which is quite hard to assume), or is not completely in consonance, with Schedule VII and Article 246.

  3. Pingback: I·CONnect – What’s New in Comparative Public Law

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s